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FILE-, 1~1 CLtoRKS OFFICE ',

8Uf'REM'; CG UR:r, STAll: Of WASI.tcm'lll

DATE MAR 1 2 20 I ~ .J '

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 89028-5

Respondent, ) (consol. wiNo. 89109-5) )

v. ) )

NICHOLAS PETER BLAZINA, ) )

Petitioner. ) EnBanc

STATE OF WASHINGTON, ) )

Respondent, ) )

v. ) )

MAURICIO TERRENCE PAIGE-COLTER, ) Filed MAR· 1 2 2015 )

Petitioner. )

MADSEN, C.J.-At sentencing, judges ordered Nicholas Blazina and Mauricio

Paige-Colter to pay discretionary legal financial obligations (LFOs) under RCW

10.01.160(3). The records do not show that the trial judges considered either defendant's

ability to pay before imposing the LFOs. Neither defendant objected at the time. For the

first time on appeal, however, both argued that a trial judge must make an individualized

No. 89028-5 (consol. wiNo. 89109-5)

inquiry into a defendant's ability to pay and that the judges' failure to make this inquiry

warranted resentencing. Citing RAP 2.5, the Court of Appeals declined to reach the issue

because the defendants failed to object at sentencing and thus failed to preserve the issue

for appeal.

Although a defendant has the obligation to properly preserve a claim of error, an

appellate court may use its discretion to reach unpreserved claims of error consistent with

RAP 2.5. In this case, we hold that the Court of Appeals did not err in declining to reach

the merits. However, exercising our own RAP 2.5 discretion, we reach the merits and

hold that a trial court has a statutory obligation to make an individualized inquiry into a

defendant's current and future ability to pay before the court imposes LFOs. Because the

trial judges failed to make this inquiry, we remand to the trial courts for new sentence

hearings.

FACTS

A. State v. Blazina

A jury convicted Blazina of one count of second degree assault, and the trial court

sentenced him to 20 months in prison. The State also recommended that the court impose

a $500 victim penalty assessment, $200 filing fee, $100 DNA (deoxyribonucleic acid)

sample fee, $400 for the Pierce County Department of Assigned Counsel, and $2,087.87

in extradition costs. Blazina did not object, and the trial court accepted the State's

recommendation. The trial court, however, did not examine Blazina's ability to pay the

discretionary fees on the record. Instead, Blazina's judgment and sentence included the

following boilerplate language:

2

No. 89028-5 (consol. wiNo. 89109-5)

2.5 ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS The court has considered the total amount owing, the defend[ant]'s past, present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The court finds that the defendant has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753

Clerk's Papers at 29.

Blazina appealed and argued that the trial court erred when it found him able to

pay his LFOs. The Court of Appeals declined to consider this claim because Blazina "did

not object at his sentencing hearing to the finding of his current or likely future ability to

pay these obligations." State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013).

We granted review. State v. Blazina, 178 Wn. App. 1010, 311 P.3d 27 (2013).

B. State v. Paige-Colter

The State charged Paige-Colter with one count of first degree assault and one

count of first degree unlawful possession of a firearm. A jury convicted Paige-Colter as

charged. The trial court imposed the State's recommended 360-month sentence of

confinement. The State also recommended that the court "impose ... standard legal

financial obligations, $500 crime victim penalty assessment, $200 filing fee, $100 fee for

the DNA sample, $1,500 Department of Assigned Counsel recoupment ... [,and]

restitution by later order." Paige-Colter Verbatim Report of Proceedings (Paige-Colter

VRP) (Dec. 9, 2011) at 6. Paige-Colter made no objection. The trial court accepted the

State's recommendation without examining Paige-Colter's ability to pay these fees on the

record. Paige-Colter's judgment and sentence included boilerplate language stating the

court considered his ability to pay the imposed legal fees.

3

No. 89028-5 (consol. wiNo. 89109-5)

Paige-Colter appealed and argued that the trial court erred when it imposed

discretionary LFOs without first maldng an individualized inquiry into his ability to pay.

The Court of Appeals concluded that Paige-Colter waived these claims by not objecting

below. State v. Paige-Colter, noted at 175 Wn. App. 1010,2013 WL 2444604, at *1.

We granted review on this issue and consolidated the case with Blazina. State v. Paige-

Colter, 178 Wn.2d 1018,312 P.3d 650 (2013).

ANALYSIS

A defendant who makes no objection to the imposition of discretionary LFOs at

sentencing is not automatically entitled to review. 1 It is well settled that an "appellate

court may refuse to review any claim of error which was not raised in the trial court."

RAP 2.5(a). This rule exists to give the trial court an opportunity to correct the error and

to give the opposing party an opportunity to respond. State v. Davis, 175 Wn.2d 287,

344,290 P.3d 43 (2012), cert. denied,_ U.S._, 134 S. Ct. 62, 187 L. Ed. 2d 51

(2013). The text of RAP 2.5(a) clearly delineates three exceptions that allow an appeal as

a matter of right. See RAP 2.5(a).2

Blazina and Paige-Colter do not argue that one of the RAP 2.5(a) exceptions

applies. Instead, they cite State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999)

1 The State argues that the issue is not ripe for review because the proper time to challenge the imposition of an LFO arises when the State seeks to collect. Suppl. Br. ofResp't (Blazina) at 5-6. We disagree. "'Three requirements compose a claim fit for judicial determination: if the issues are primarily legal, do not require further factual development, and the challenged action is final."' State v. Bah!, 164 Wn.2d 739, 751, 193 P.3d 678 (2008) (quoting First United Methodist Church v. Hr'g Exam 'r, 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996)). A challenge to the trial court's entry of an LFO order under RCW 10.01.160(3) satisfies all three conditions. 2 By mle, "a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right." RAP 2.5(a).

4

No. 89028-5 (consol. wiNo. 89109-5)

and argue that "it is well established that illegal or erroneous sentences may be

challenged for the first time on appeal," suggesting that they may challenge unpreserved

LFO errors on appeal as a matter of right. Suppl. Br. ofPet'r (Blazina) at 3. In State v.

Jones, 182 Wn.2d 1, 338 P.3d 278 (2014), a recent unanimous decision by this court, we

said that Ford held unpreserved sentencing errors "may be raised for the first time upon

appeal because sentencing can implicate fundamental principles of due process if the

sentence is based on information that is false, lacks a minimum indicia of reliability, or is

unsupported in the record." Jones, 182 Wn.2d at 6. However, we find the exception

created by Ford does not apply in this case.

Unpreserved LFO errors do not command review as a matter of right under Ford

and its progeny. As stated in Ford and reiterated in our subsequent cases, concern about

sentence conformity motivated our decision to allow review of sentencing errors raised

for the first time on appeal. See Ford, 137 Wn.2d at 478. We did not want to '"permit[]

widely varying sentences to stand for no reason other than the failure of counsel to

register a proper objection in the trial court."' Id. (quoting State v. Paine, 69 Wn. App.

873, 884, 850 P.2d 1369 (1993)). Errors in calculating offender scores and the

imposition of vague community custody requirements create this sort of sentencing error

and properly fall within this narrow category. See State v. Mendoza, 165 Wn.2d 913,

919-20, 205 P.3d 113 (2009) (prior convictions for sentencing range calculation); Ford,

137 Wn.2d at 475-78 (classification of out of state convictions for offender score

calculation); State v. Bahl, 164 Wn.2d 739, 743-45, 193 P.3d 678 (2008) (community

custody conditions of sentence). We thought it justifiable to review these challenges

5

No. 89028-5 (consol. wiNo. 89109-5)

raised for the first time on appeal because the error, if permitted to stand, would create

inconsistent sentences for the same crime and because some defendants would receive

unjust punishment simply because his or her attorney failed to object.

But allowing challenges to discretionary LFO orders would not promote

sentencing uniformity in the same way. The trial court must decide to impose LFOs and

must consider the defendant's current or future ability to pay those LFOs based on the

particular facts of the defendant's case. See RCW 10.01.160(3). The legislature did not

intend LFO orders to be uniform among cases of similar crimes. Rather, it intended each

judge to conduct a case-by-case analysis and arrive at an LFO order appropriate to the

individual defendant's circumstances. Though the statute mandates that a trial judge

consider the defendant's ability to pay and, here, the trial judges erred by failing to

consider, this error will not taint sentencing for similar crimes in the future. The error is

unique to these defendants' circumstances, and the Court of Appeals properly exercised

its discretion to decline review.

Although the Court of Appeals properly declined discretionary review, RAP 2.5(a)

governs the review of issues not raised in the trial court for all appellate courts, including

this one. While appellate courts normally decline to review issues raised for the first time

on appeal, see Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005), RAP 2.5(a)

grants appellate courts discretion to accept review of claimed errors not appealed as a

matter ofright.3 State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011). Each

3 RAP 2.5(a) states, "The appellate court may refuse to review any claim of error which was not raised in the trial court."

6

No. 89028-5 (consol. wiNo. 89109-5)

appellate court must make its own decision to accept discretionary review. National and

local cries for refonn of broken LFO systems demand that this court exercise its RAP

2.5(a) discretion and reach the merits ofthis case.

At a national level, organizations have chronicled problems associated with LFOs

imposed against indigent defendants. These problems include increased difficulty in

reentering society, the doubtful recoupment of money by the government, and inequities

in administration. In 2010, the American Civil Liberties Union issued a report that

chronicled the problems associated with LFOs in five states-including Washington­

and recommended reforms to state and to local officials. AM. CIVIL LIBERTIES UNION, IN

FOR A PENNY: THE RISE OF AMERICA'S NEW DEBTORS' PRISONS (20 1 0) (ACLU),

available at https://www.aclu.org/files/assets/InForAPenny_web.pdf. That same year,

the Brennan Center for Justice at New York University School of Law published a report

outlining the problems with criminal debt, most notably the impediment it creates to

reentry and rehabilitation. ALICIA BANNON, MITALINAGRECHA & REBEKAH DILLER,

BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY (20 1 0),

available at http://www .brennan center .org/ sites/ default/files/legacy

/Fees%20and%20Fines%20FINAL.pdf. Two years later, the Brennan Center followed

up with "A Toolkit for Action" that proposed five specific reforms to combat the

problems caused by inequitable LFO systems. ROO PAL PATEL & MEGHNA PHILIP,

BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A TOOLKIT FOR ACTION (20 12),

available at http://www. brennan center .org/ sites/ default/files/legacy/publications

/Criminal %20Justice%20Debt%20Background%20for%20web.pdf. As part of its second

7

No. 89028-5 ( consol. wiNo. 891 09-5)

proposed reform, the Brennan Center advocated that courts must determine a person's

ability to pay before the court imposes LFOs. I d. at 14.

Washington has contributed its own voice to this national conversation. In 2008,

the Washington State Minority and Justice Commission issued a report that assessed the

problems with the LFO system in Washington. KATHERINE A. BECKETT, ALEXES M.

HARRIS & HEATHER EVANS, WASH. STATE MINORITY & JUSTICE COMM'N, THE

ASSESSMENT AND CONSEQUENCES OF LEGAL FINANCIAL OBLIGATIONS IN WASHINGTON

STATE (2008) (WASH. STATE MINORITY & JUSTICE COMM'N), available at

http://www.courts.wa.gov/committee/pdf/2008LFO _report. pdf. This conversation

remains important to our state and to our court system.

As amici4 and the above-referenced reports point out, Washington's LFO system

carries problematic consequences. To begin with, LFOs accrue interest at a rate of 12

percent and may also accumulate collection fees when they are not paid on time. RCW

10.82.090(1); Travis Stearns, Legal Financial Obligations: Fulfilling the Promise of

Gideon by Reducing the Burden, 11 SEATTLE J. Soc. JUST. 963, 967 (2013). Many

defendants cannot afford these high sums and either do not pay at all or contribute a small

amount every month. WASH. STATE MINORITY & JUSTICE COMM'N, supra, at 21. But on

average, a person who pays $25 per month toward their LFOs will owe the state more 10

years after conviction than they did when the LFOs were initially assessed. Id. at 22.

4 This court received a joint amici curiae brief from the Washington Defender Association, the American Civil Liberties Union of Washington, Columbia Legal Services, the Center for Justice, and the Washington Association of Criminal Defense Lawyers.

8

No. 89028-5 (consol. wiNo. 89109-5)

Consequently, indigent offenders owe higher LFO sums than their wealthier counterparts

because they cannot afford to pay, which allows interest to accumulate and to increase

the total amount that they owe. See id. at 21-22. The inability to pay off the LFOs means

that courts retain jurisdiction over impoverished offenders long after they are released

from prison because the court maintains jurisdiction until they completely satisfy their

LFOs. Id. at 9-11; RCW 9.94A.760(4) ("For an offense committed on or after July 1,

2000, the court shall retain jurisdiction over the offender, for purposes of the offender's

compliance with payment of the legal financial obligations, until the obligation is

completely satisfied, regardless of the statutory maximum for the crime."). The court's

long-term involvement in defendants' lives inhibits reentry: legal or background checks

will show an active record in superior court for individuals who have not fully paid their

LFOs. ACLU, supra, at 68-69. This active record can have serious negative

consequences on employment, on housing, and on finances. Id. at 69. LFO debt also

impacts credit ratings, making it more difficult to find secure housing. WASH. STATE

MINORITY & JUSTICE COMM'N, supra, at 43. All of these reentry difficulties increase the

chances of recidivism. I d. at 68.

Moreover, the state cannot collect money from defendants who cannot pay, which

obviates one of the reasons for courts to impose LFOs. See RCW 9.94A.030. For

example, for three quarters of the cases sentenced in the first two months of 2004, less

than 20 percent of LFOs had been paid three years after sentencing. WASH. STATE

MINORITY & JUSTICE COMM'N, supra, at 20.

9

No. 89028-5 (consol. wiNo. 89109-5)

Significant disparities also exist in the administration ofLFOs in Washington. For

example, drug-related offenses, offenses resulting in trial, Latino defendants, and male

defendants all receive disproportionately high LFO penalties. !d. at 28-29. Additionally,

counties with smaller populations, higher violent crime rates, and smaller proportions of

their budget spent on law and justice assess higher LFO penalties than other Washington

counties. !d.

Blazina and Paige-Colter argue that, in order to impose discretionary LFOs under

RCW 10.01.160(3), the sentencing judge must consider the defendant's individual

financial circumstances and make an individualized inquiry into the defendant's current

and future ability to pay. Suppl. Br. ofPet'r (Blazina) at 8. They also argue that the

record must reflect this inquiry. We agree. By statute, "[t]he court shall not order a

defendant to pay costs unless the defendant is or will be able to pay them." RCW

10.01.160(3) (emphasis added). To determine the amount and method for paying the

costs, "the court shall take account of the financial resources of the defendant and the

nature of the burden that payment of costs will impose." !d. (emphasis added).

As a general rule, we treat the word "shall" as presumptively imperative-we

presume it creates a duty rather than confers discretion. State v. Bartholomew, 104

Wn.2d 844, 848, 710 P.2d 196 (1985). Here, the statute follows this general rule.

Because the legislature used the word "may" 11 times and the word "shall" eight times in

RCW 10.01.160, we hold that the legislature intended the two words to have different

meanings, with "shall" being imperative.

10

No. 89028-5 (consol. wiNo. 89109-5)

Practically speaking, this imperative under RCW 10.0 1.160(3) means that the

court must do more than sign a judgment and sentence with boilerplate language stating

that it engaged in the required inquiry. The record must reflect that the trial court made

an individualized inquiry into the defendant's current and future ability to pay. Within

this inquiry, the court must also consider important factors, as amici suggest, such as

incarceration and a defendant's other debts, including restitution, when determining a

defendant's ability to pay.

Courts should also look to the comment in court rule GR 34 for guidance. This

rule allows a person to obtain a waiver of filing fees and surcharges on the basis of

indigent status, and the comment to the rule lists ways that a person may prove indigent

status. GR 34. For example, under the rule, courts must find a person indigent if the

person establishes that he or she receives assistance from a needs-based, means-tested

)

assistance program, such as Social Security or food stamps. !d. (comment listing facts

that prove indigent status). In addition, courts must find a person indigent if his or her

household income falls below 125 percent of the federal poverty guideline. Id. Although

the ways to establish indigent status remain nonexhaustive, see id., if someone does meet

the GR 34 standard for indigency, courts should seriously question that person's ability to

pay LFOs.

CONCLUSION

At sentencing, judges ordered Blazina and Paige-Colter to pay LFOs under RCW

1 0. 0 1.160(3). The records, however, do not show that the trial judges considered either

defendant's ability to pay before imposing the LFOs. The defendants did not object at

11

No. 89028-5 (consol. wiNo. 89109-5)

sentencing. Instead, they raised the issue for the first time on appeal. Although appellate

courts will normally decline to hear unpreserved claims of error, we take this occasion to

emphasize the trial court's obligation to consider the defendant's ability to pay.

We hold that RCW 10.01.160(3) requires the record to reflect that the sentencing

judge made an individualized inquiry into the defendant's current and future ability to

pay before the court imposes LFOs. This inquiry also requires the court to consider

important factors, such as incarceration and a defendant's other debts, including

restitution, when determining a defendant's ability to pay. Because the records in this

case do not show that the sentencing judges made this inquiry into either defendant's

ability to pay, we remand the cases to the trial courts for new sentence hearings.

12

No. 89028-5 (consol. wiNo. 89109-5)

~,c.Y,

WE CONCUR:

----~-··--'-----------

13

State v. Blazina; State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)

No. 89028-5

FAIRHURST, J. (concurring in the result)-! agree with the majority that

RCW 1 0. 0 1.160(3) requires a sentencing judge to make an individualized

determination into a defendant's current and future ability to pay before the court

imposes legal financial obligations (LFOs). I also agree that the trial judges in these

cases did not consider either defendant's ability to pay before imposing LFOs.

Because the error was unpreserved, I also agree that we must determine whether it

should be addressed for the first time on appeal. RAP 2.5(a).

I disagree with how the majority applies RAP 2.5(a). RAP 2.5(a) contains

three exceptions on which unpreserved errors can be raised for the first time on

appeal. While the majority does not indicate which of the three exceptions it is

applying to reach the merits, it is likely attempting to use RAP 2.5(a)(3), "manifest

error affecting a constitutional right." 1 However, the majority fails to apply the

three part test from State v. O'Hara, 167 Wn.2d 91, 98-100, 217 P.3d 756 (2009),

that established what an appellant must demonstrate for an appellate court to reach

an unpreserved error under RAP 2.5(a)(3).

1The other two exceptions, "(1) lack of trial court jurisdiction" and "(2) failure to establish facts upon which relief can be granted," are not applicable. RAP 2.5(a).

1

State v. Blazina,· State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)

In 0 'Hara, we found that to meet RAP 2.5(a)(3) and raise an error for the first

time on appeal, an appellant must demonstrate the error is manifest and the error is

truly of constitutional dimension. Id. at 98. Next, if a court finds a manifest

constitutional error, it may still be subject to a harmless error analysis.Jd.

Here, the error is not constitutional in nature and thus the unpreserved error

cannot be reached under a RAP 2.5(a)(3) analysis. In analyzing the asserted

constitutional interest, we do not assume the alleged error is of constitutional

magnitude but instead look at the asserted claim and assess whether, if correct, it

implicates a constitutional interest as compared to another form of trial error.Id.

The trial court judges in Blazina and Paige-Colter did not inquire into the

defendants' ability to pay LFOs, which violates RCW 10.01.160(3). RCW

10.01.160(3) provides:

The court shall not order a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

Failing to determine a defendant's ability to pay LFOs violates the statute but does

not implicate a constitutional right.

Although the unpreserved error does not meet the RAP 2.5(a)(3) standard

from 0 'Hara, I would hold that this error can be reached by applying RAP 1.2(a),

2

State v. Blazina,· State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)

which states that the "rules will be liberally interpreted to promote justice and

facilitate the decision of cases on the merits." RAP 1.2(a) is rarely used, but this is

an appropriate case for the court to exercise its discretion to reach the unpreserved

error because of the widespread problems, as stated in the majority, associated with

LFOs imposed against indigent defendants. Majority at 6.

The consequences of the State's LFO system are concerning, and addressing

where courts are falling short of the statute will promote justice. In State v. Aha, 137

Wn.2d 736, 740-41, 975 P.2d 512 (1999), we held that the supreme court "has the

authority to determine whether a matter is properly before the court, to perform those

acts which are proper to secure fair and orderly review, and to waive the rules of

appellate procedure when necessary 'to serve the ends of justice.'" (quoting RAP

1.2(c)). I agree with the majority that RCW 10.01.160(3) requires sentencing judges

to take a defendant's individual financial circumstances into account and make an

individual determination into the defendant's current and future ability to pay. In

order to ensure that indigent defendants are treated as the statute requires, we should

reach the unpreserved error.

For the foregoing reasons, I concur in the result only.

3

State v. Blazina,· State v. Paige-Colter, No. 89028-5 (Fairhurst, J., concurring in the result)

4